T.P. Mukherji, J.
1. The husband of a woman who was the complainant in a case under Section 498 of the Penal Code against the respondent and another person filed this appeal with the special leave of the Court under Section 417(3) of the Criminal P.C. against the acquittal of the respondent therein. The prosecution case in short was that P.W. 4 Manjurani wag the wife of the complainant and while they were living together, the respondent and the co-accused in the case enticed her away from his house on July 17, 1964. Prior to this incident, the accused in the case is alleged to have been trying to misbehave with the complainant's wife and on one occasion there was an attempt by the present respondent to injure the complainant with a knife on his protest against their conduct. It was further alleged in the petition that the girl was being detained by the two accused in the case after the enticement. The petition of complaint was filed on July 28, 1964.
2. The defence was a plea of not guilty and it was stated that the girl Manjurani might have left her husband's protection of her own accord and that the accused themselves had nothing to do therewith and that they had not been detaining her as alleged.
3. The learned Magistrate found that the evidence on the point of the offence under Section 498 of the Penal Code with which the two accused persons were charged was not acceptable for reasons given by him and on this finding followed the order of acquittal the propriety whereof is challenged in this appeal.
4. Mr. Mukherji appearing for the appellant contends that there is sufficient evidence in support of the charge under Section 498 of the Penal Code in the testimony of the complainant, P.W. 1, and of his two witnesses, P.Ws 2 and 3 P.W. 1 is not a witness to the incident involving the taking or enticement of the girl from her husband's custody. P.Ws. 2 and 3 claim to be eye-witness to the actual taking. The learned Magistrate has observed that, on the evidence, it appears that shortly after the incident the complainant heard about it from P.Ws 2 and S and if that evidence were really true, there is no explanation as to the non-mention of P.Ws. 2 and 3 amongst the witnesses who are named in the petition of complaint1. In the petition of complaint, we get specific mention of the name of five witnesses, but strangely enough the names of P.Ws. 2 and 3, who are the most important witnesses to prove the charge alleged, are not to be found therein. If for this reason the learned Magistrate found himself unable to accent their testimony, I can find no fault with his finding in that regard. Admittedly, apart from the evidence of P.Ws. 2 and 3, there is no other evidence in the case on the point of enticement or taking which is the most important ingredient of an offence under Section 498 of the Penal Code.
5. The next contention of Mr. Mukherji is that, even, if the evidence ware found insufficient for the purpose of establishing a charge under Section 498 of the Penal Code, there is ample evidence in the case in support of a charge under Section 497 of the Penal Code and that, on the evidence on record, the learned Magistrate need have felt no difficulty in convicting the accused under that section. In support of this argument, Mr. Mukherji refers to the provisions of Sections 236 and 237 of the Criminal P.C. and also to a Privy Council decision in Begu v. King-Emperor and the Supreme Court decision in G.D. Sharma and N. Tyagi v. State of Uttar Pradesh : AIR1960SC400 .
6. Under Section 236 of the Code, in case of a doubt as which of several offences a single act or a series of acts attributed to an accused may constitute, he may be charged with having committed all or any of the offences or he may be charged in the alternative with having committed some one of the said offences, and under Section 287 of the Code, if in the case mentioned in Section 286 the accused is charged with one offence but it appears from evidence that he committed a different offence for which he might have been charged but was not charged, he may be convicted of the offence which he is found to have committed although he was not charged with it. The argument of Mr. Mukherji is that on the facts that came out in evidence, the accused per. sons could have been charged with both the offences under Sections 498 and 497 of Penal Code and if they were charged only with Section 498 of the Penal Code and evidence fails to establish that charge but is found sufficient to establish a charge under Section 497 of the Penal Code, the provision of Section 237 of the Criminal P.C. can be availed of for the purpose of connoting the respondent under that section.
7. In the Privy Council case referred to above, the appellants were charged with an offence under Section 302 of the Penal Code. The evidence adduced n the case failed to establish that charge hut was found sufficient for the purpose of their conviction under Section 201 of the Penal Code. Their Lordships of the Privy Council observed that the illustration given in Section 237 of the Criminal P.C. makes the meaning of the words of the section quite plain. It was held that:
A man may be convicted of an offence although there may be no charge in respect of it if the evidence it such as to establish a charge that might have been made.
This decision involving the interpretation of Section 287 of the Criminal P.C. undoubtedly supports the argument of Mr. Mukherji in the case.
8. The Supreme Court decision referred to by Mr. Mukherji is not strictly to the point. There an accused was charged under Section 467 of the Penal Code and it was ultimately held by the Supreme Court that the act attributed to the accused and proved would in the circumstances of the case in itself not constitute an offence under that section but one under Section 477-A of the Penal Code and with the aid of Sections 236 and 237 of the Criminal P.C. the conviction was altered accordingly.
9. In view of the above and, particularly, in view of the Privy Council decision referred to by Mr. Mukherji, I find that, in the facts and circumstances of this case, a conviction of the respondent under Section 497 of the Penal Code would be permissible, although he was not charged with it if the evidence on record is found sufficient to support a conviction thereunder.
10. P.W. 4 is the girl Manjurani Singha Roy. She stated in her evidence that she was arrested by the police from a house at Patipukur where she had been living along with the respondent and that both of them were produced by the police before the Magistrate. This evidence by itself might not have been acted on the learned advocate appearing on behalf of the respondent urges that this evidence should be rejected in view of the fact that the girl. P.W. 4, was declared hostile. A hostile prosecution witness who is permitted to be cross-examined by the prosecution dose not necessarily lose her credibility because of that fact. The entice evidence of the hostile witness baa to be considered on its merits and the Court would be perfectly entitled to accept as much of that evidence as it might find acceptable. So far as the above evidence of P.W. 4 is concerned, we find on record, a G.D. Entry, Ext. 2, made on the information of the father of the girl, Haripada, who was examined as P.W. 12 in the case. The G.D. was entered, on the production of the girl and the respondent by P.W. 12 at the police-station at Dum Dum and on the statement made by the informant. P.W. 12 who was declared hostile, no doubt denied having had laid any information at the police-station on the date in question an also having had produced his daughter and the respondent there at the time, This evidence is clearly unacceptable. The evidence of the girl, P.W. 4, finds ample corroboration in the G.D., Ext. 2, in so far as it mentions about the joint production of P.W. 4 and the respondent at the police-station by P.W. 12. It would appear, therefore, that P.W. 4, a young girl was found living in a house at Patipukur, as P.W. 4 herself admits, with the respondent, a young man. We get it further from the evidence of P.W. 10 who lives at Jagaddal that P.W. 4 during the pendency of the case before the Magistrate was living at Jagaddal having been granted bail by the Court and that in the same house the respondent was also living. The conduct of the respondent, both prior to and subsequent to the prosecution, must lead to a very reasonable inference that they were living in adultery. The learned Magistrate has found on evidence that the girl, P.W. 4, is the wife of the complainant. This is also admitted by the respondent in course of his examination under Section 342 of the Criminal P.C., That she was the wife of the complainant was also known to the respondent, as is amply proved by the materials on record. This fact also was admitted by the respondent in course of his examination under Section 312 of the Criminal P.C. If with such knowledge the respondent had been living with the woman under circumstances which must lead to an inference that they were living in adultery, a charge under Section 497 of the Penal Code must be held to have been established by the evidence on record. I find that the learned Magistrate, on the evidence recorded by him, could have framed a charge under Section 497 of the Penal Code against the respondent and that even if no charge were framed he could have convicted him thereunder, even though the charge that was framed hid failed.
11. The appeal, is accordingly, allowed. The acquittal of the respondent in the case is set aside and he is found guilty and convicted under Section 497 of the Penal Code. I sentence him to pay a fine of Rs. 500/-, in default, to suffer rigorous imprisonment ror six months.